Federal Court of Appeal Upholds Unconstitutionality of Voting Prohibition

Date: 20260703 Docket: A-167-24 Citation: 2026 FCA 125 CORAM: [NAME]. [NAME] J.A. [NAME] J.A. BETWEEN: [NAME] Appellant and [NAME] Respondent Heard at Edmonton, Alberta, on June 16, 2026. Judgment delivered at Ottawa, Ontario, on July 3, 2026.

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME]. [NAME] J.A. Date: 20260703 Docket: A-167-24 Citation: 2026 FCA 125 CORAM: [NAME]. [NAME] J.A. [NAME] J.A. BETWEEN: [NAME] Appellant and [NAME] Respondent

REASONS FOR

JUDGMENT [NAME] J.A. [ 1 ] The appellant, [NAME] ([NAME]) is comprised of two communities: [NAME] and [NAME] ([NAME]). Although recognized as one “band” under the Indian Act , R.S.C., 1985, c. I-5, they hold separate elections. Both are governed by [NAME]’s [NAME] ([NAME]). The respondent, [NAME], is a registered member of [NAME] and is seeking the right to vote in [NAME] elections. [ 2 ] [NAME] became a member of [NAME] in 1985 when her mother was reinstated as a band member following the passage of Bill C-31 ( An Act to Amend the Indian Act , S.C. 1985, c. 27). The amendments introduced as part of Bill C-31 had the effect of reinstating status to women, and by extension to their children, who had lost their Indian status upon marrying non-status men. Despite the Bill C-31 amendments, members who regained their status continue to be denied the right to vote in [NAME] elections (Voting Prohibition). [ 3 ] In 2022, [NAME] filed an application for judicial review wherein she challenged the decision of the [NAME] denying Bill C-31 members the right to vote in the 2022 Band Council elections. [NAME] also sought various declarations, including a declaration that the Voting Prohibition is contrary to section 15 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act , 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [ 4 ] In reasons recorded as 2023 FC 1239, the Federal Court agreed with [NAME] (Federal Court decision). After concluding it had jurisdiction to determine the application for judicial review, the Federal Court found that the decision to deny the right to vote to Bill C-31 members was unreasonable. Neither the reasons nor the record demonstrated that the [NAME] had conducted a proportionate balancing between the Charter rights at issue and the object of the [NAME]. The Federal Court also held that section 32 of the Charter applied to the [NAME] and that the Voting Prohibition breached section 15 of the Charter and could not be saved by section 1. It further held that section 25 of the Charter could not shield the Voting Prohibition as it was not a custom of [NAME] and that, in any event, section 25 was superseded by operation of section 28 of the Charter , which protects against gender discrimination. The Federal Court declared the Voting Prohibition unconstitutional and of no force and effect but suspended the declaration of invalidity for six months in order to permit [NAME] to amend its [NAME]. [ 5 ] In its initial written submissions to this Court, [NAME] argued that the Federal Court erred in concluding there was a decision grounding the Federal Court’s jurisdiction to adjudicate [NAME]’ application for judicial review. It disputed that the events surrounding the denial of [NAME]’ voting rights should be considered as they involved different decision-makers —the Chief and Band Council, the [NAME] and the [NAME] on [NAME] day— and did not reflect a “continuous course of conduct” . However, in its written reply submissions, [NAME] later conceded that the decision of the [NAME] could be judicially reviewed, although it submits that the decision is not a decision of [NAME]’s Chief and Council. [ 6 ] [NAME] further argues that the Federal Court erred in assessing the constitutional issues after finding the [NAME]’s decision to be unreasonable. In its view, the proper remedy was to send the matter back to the [NAME] for a decision on [NAME]’ eligibility to vote. [ 7 ] Finally, and in the alternative, [NAME] submits that the Federal Court erred in finding that the Voting Prohibition was not protected by section 25 of the Charter or saved under section 1. [ 8 ] After considering [NAME]’s oral and written submissions, I am of the view that the appeal must fail. [ 9 ] First, with regard to [NAME]’s argument that there was no “continuous course of conduct” that can be reviewed, the concession that the [NAME]’s decision is subject to judicial review is sufficient to dispose of the jurisdictional issue. [ 10 ] Moreover, section 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 (FCA) captures a broad range of conduct and is not limited to a decision or an order of a federal board . An application for judicial review may be made “by anyone directly affected by the matter in respect of which relief is sought” (subsection 18.1(1) of the FCA; see [NAME] v. [NAME] , 2021 FCA 123 at paras. 34-35) . This includes, as the Federal Court noted, [NAME] seeking a declaration on the constitutional validity of the Voting Prohibition, which in essence constitutes the “matter” of the application for judicial review (Federal Court decision at para. 50). [ 11 ] Second, I agree with [NAME] that the administrative law issues in this appeal are moot. Indeed, a new [NAME] cycle has come and gone since [NAME] was denied the right to vote in the 2022 [NAME]. It would serve no useful purpose for this Court to set aside the decision and send the matter back to the [NAME] on the basis that the decision was unreasonable. That said, [NAME] was again denied the right to vote in the June 2025 [NAME]. I am thus of the view that it is an appropriate use of judicial resources to address the issue of the constitutional validity of the Voting Prohibition given that it remains a live issue between the parties. [ 12 ] [NAME] no longer argues that the Charter does not apply to the Voting Prohibition. While this argument featured prominently in the Federal Court’s reasons, this issue has been resolved by the recent decision of the Supreme Court of Canada in [NAME] v. [NAME] , 2024 SCC 10, which was rendered after the issuance of the Federal Court decision. [ 13 ] [NAME] also does not deny that the Voting Prohibition prima facie breaches section 15 of the Charter . [ 14 ] [NAME]’s submissions at the hearing focused on the source of the Voting Prohibition. It argued that in the absence of any reasons from the decision-makers, there is no proof that section 2(a) of the [NAME] is indeed the source of the prohibition which prevented [NAME] from exercising her voting rights. [ 15 ] Section 2(a) of [NAME]’s [NAME] prevents “Red Ticket Indians” from voting in Band Council elections. The term “Red Ticket Indians” originates from legislation in 1869 (later incorporated into the Indian Act ) when the federal government introduced the statutory marrying out rule which deprived women of their Indian status when they married non-status men. The same legislation permitted those women to continue participating in the annuities of the band despite their loss of status. Women in this situation were issued identity cards known as “red tickets” . When the Indian Act was amended in 1951, these women were forced to commute their annuities and leave their reserves, thus ending the practice of “red tickets” ( [NAME] v. Canada , 2013 FC 6 at paras. 460-461, rev’d in part 2014 FCA 101, aff’d 2016 SCC 12; [NAME] v. [NAME] , 2023 FC 220 at paras. 63-64 ). [ 16 ] [NAME] contends that since this category no longer exists and is therefore unrelated to the denial of voting rights to Bill C-31 members, the Federal Court had no basis upon which to declare the Voting Prohibition unconstitutional. [ 17 ] There are several problems with [NAME]’s submission. To begin with, its argument that section 2(a) of the [NAME] is not the “source” of the Voting Prohibition was not raised in its Notice of Appeal, nor was it clearly set out in its Amended Memorandum of Fact and Law. The general rule is that this Court will not hear grounds of appeal that were not raised in the Notice of Appeal. This is to ensure that “the parties know at an early stage of the appeal what is in issue and can make legal, tactical and policy decisions accordingly” ( Canada v. [NAME] , 2022 FCA 20 at para. 40) . [ 18 ] Furthermore, raising this new argument on appeal deprives this Court of the benefit of an evidentiary record upon which to consider it. As the Supreme Court has stated, new issues should not be considered on appeal “unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it” ( [NAME] v. [NAME] , 2009 SCC 62 at para. 36, citing [NAME] v. [NAME] , 1907 CanLII 38 (SCC), 38 S.C.R. 516, at p. 539). [NAME] raised this argument before the Federal Court, it would have been required to submit evidence to support its submission that section 2(a) of the [NAME] was not the basis for the Voting Prohibition. It did not do so. [ 19 ] I also note that [NAME]’s own Notice of Appeal, at paragraph 6, explicitly states “[as [NAME]] obtained her Indian Status through the Bill C-31 amendments to the Indian Act , she was not permitted to vote in the June 2022 [NAME], pursuant to the [NAME] then in effect and in particular s. 2(a) of that Law” . Had new counsel for [NAME] wished to modify [NAME]’s position on this matter, it was incumbent upon them to file a motion to amend the Notice of Appeal. [ 20 ] The nexus between section 2(a) of the [NAME] and the practice of denying Bill C-31 members the right to vote is also supported by the record. For example, the affidavit and cross-examination of [NAME] further demonstrates that the Voting Prohibition was rooted in the [NAME] and targets Bill C-31 members because of a lack of funding and an insufficient land base to accommodate these new members (Appeal Book at pp. 76-114; Supplementary Appeal Book at pp. 307-309). [ 21 ] The same nexus was also made clear in [NAME] , wherein the Federal Court considered the relationship between the “Red Ticket Indians” exception in section 2(a) of the [NAME] C-31 members. The Federal Court explained that “[e]ssentially, the [NAME] state that women who lost their status and membership because they married out are not eligible to vote. […] these are the same women, along with their descendants, who later became Bill C-31 members” ( [NAME] at para. 65). [ 22 ] In light of the above, I reject [NAME]’s new argument that section 2(a) was not the source of the refusal to allow [NAME], and other Bill C-31 members, the right to vote in the 2022 [NAME]. The Federal Court made no error interpreting the provision as such. [ 23 ] In any event, even if the Voting Prohibition was not rooted in the text of the [NAME] but in an unwritten practice, I note that the Federal Court held in [NAME]— a case that considered the Voting Prohibition as applied by the [NAME]—that the Voting Prohibition is unconstitutional because it unjustifiably discriminates on the basis of sex. [ 24 ] [NAME] did not deny before the Federal Court that the Voting Prohibition prima facie breaches section 15 of the Charter , accepting that if section 32 of the Charter applied, the analysis in the [NAME] decision should be followed. [NAME]’s main contention is that the Federal Court erred in finding that the Voting Prohibition was not protected by section 25 or saved under section 1 of the Charter . [ 25 ] I disagree. While the order of the analysis undertaken by the Federal Court differs from the analytical framework enunciated by the Supreme Court in [NAME] —which prescribes that the analysis of justification under section 1 of the Charter arises only if the court finds that section 25 of the Charter is inapplicable ( [NAME] at paras. 177-183)—I am of the view that the result would be the same. [ 26 ] Under the second step of the four-step analytical framework set out in [NAME] , the Supreme Court noted that “the party invoking [section 25]—typically the party relying on a collective minority interest—must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under [section 25 of the Charter ]. That party bears the burden of demonstrating that the right for which it claims [section 25] protection is an Aboriginal, treaty or other right. If the right at issue is an ‘other’ right, then the party defending against the Charter claim must demonstrate the existence of the asserted right and the fact that the right protects or recognizes Indigenous difference” ( [NAME] at para. 180). [ 27 ] [NAME] concedes that the [NAME] do not flow from an Aboriginal or treaty right. However, it contends that the right to determine its own [NAME], including the right to set criteria for voting in its elections, falls under the category of an “other right” of self-government, is consistent with the United Nations Declaration on the Rights of Indigenous Peoples , OHCHR, 33rd Sess, UN Doc A/RES/61/295 (2007) GA Res 61/295 (UNDRIP), and therefore warrants protection under section 25 of the Charter . [ 28 ] The problem with this argument is that [NAME] failed to lead any evidence before the Federal Court that established that the Voting Prohibition fell within the category of an “other right” that protects interests associated with Indigenous difference. [NAME] accordingly did not meet its burden of demonstrating that the right for which it claims protection is protected under section 25 of the Charter . Simply referring to UNDRIP is insufficient. Incidentally, I note that in [NAME] the Federal Court considered whether the same Voting Prohibition could be considered a written or an unwritten custom of [NAME] supported by a broad community consensus. It found that it could not (at paras. 59, 62, 69, 73, 171). [ 29 ] Given the conclusion that the analysis fails at the second step of the [NAME] section 25 framework, there is no need to consider whether section 28 of the Charter would oust the potential shielding effect of section 25. [ 30 ] Finally, I see no reason to interfere with the Federal Court’s conclusion that the Voting Prohibition was not justified under section 1 of the Charter , as [NAME] failed to lead sufficient evidence to demonstrate that the breach could be justified under section 1 in this case. [ 31 ] For the foregoing reasons, I would dismiss the appeal with costs fixed in the all-inclusive lump sum amount of $25,000 as agreed to by counsel for the parties. "[NAME]" J.A. “I agree. [NAME].” “I agree. K.A. [NAME].” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-167-24 STYLE OF CAUSE: [NAME] v. [NAME] OF HEARING: Edmonton, Alberta DATE OF HEARING: June 16, 2026

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME]. [NAME] J.A. DATED: July 3, 2026 APPEARANCES : [NAME] For The Appellant [NAME], K.C. For The Appellant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], [COMPANY], Alberta For The Appellant [NAME], British Columbia For The Respondent